Financial Services and Markets Act 2000, section 393

Third party rights

Part XXVI Notices

(1)If any of the reasons contained in a warning notice to which this section applies relates to a matter which—

(a) identifies a person (“the third party”) other than the person to whom the notice is given, and

(b)in the opinion of the [F3037regulator giving the noticeF3037] , is prejudicial to the third party,

a copy of the notice must be given to the third party.

(2)Subsection (1) does not require a copy to be given to the third party if the [F3038regulator giving the noticeF3038] —

(a)has given him a separate warning notice in relation to the same matter; or

(b)gives him such a notice at the same time as it gives the warning notice which identifies him.

(3)The notice copied to a third party under subsection (1) must specify a reasonable period (which may not be less than [F303914 daysF3039] ) within which he may make representations to [F3040the regulator giving the noticeF3040] .

(4)If any of the reasons contained in a decision notice to which this section applies relates to a matter which—

(a) identifies a person (“the third party”) other than the person to whom the decision notice is given, and

(b)in the opinion of [F3041the regulator giving the noticeF3041] , is prejudicial to the third party,

a copy of the notice must be given to the third party.

(5)If the decision notice was preceded by a warning notice, a copy of the decision notice must (unless it has been given under subsection (4)) be given to each person to whom the warning notice was copied.

(6)Subsection (4) does not require a copy to be given to the third party if [F3042the regulator giving the noticeF3042] —

(a)has given him a separate decision notice in relation to the same matter; or

(b)gives him such a notice at the same time as it gives the decision notice which identifies him.

(7)Neither subsection (1) nor subsection (4) requires a copy of a notice to be given to a third party if [F3043the regulator giving the noticeF3043] considers it impracticable to do so.

(8)Subsections (9) to (11) apply if the person to whom a decision notice is given has a right to refer the matter to the Tribunal.

(9)A person to whom a copy of the notice is given under this section may refer to the Tribunal—

(a)the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or

(b)any opinion expressed by [F3044the regulator giving the noticeF3044] in relation to him.

(10)The copy must be accompanied by an indication of the third party’s right to make a reference under subsection (9) and of the procedure on such a reference.

(11)A person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and—

(a)the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or

(b)any opinion expressed by [F3045the regulator giving the noticeF3045] in relation to him.

(12)Section 394 applies to a third party as it applies to the person to whom the notice to which this section applies was given, in so far as the material [F3046to which access must be givenF3046] under that section relates to the matter which identifies the third party.

(13)A copy of a notice given to a third party under this section must be accompanied by a description of the effect of section 394 as it applies to him.

(14)Any person to whom a warning notice or decision notice was copied under this section must be given a copy of a notice of discontinuance applicable to the proceedings to which the warning notice or decision notice related.

Read section 393 in the full Act → Definitions (2) Cases (10)

Definitions used in section 393

regulator

“regulator” has the meaning given in section 3A(2);

Defined in s.417(1) · see it in the full Act
the Tribunal

“the Tribunal” means the Upper Tribunal;

Defined in s.417(1) · see it in the full Act

Cases considering section 393 (10)

Financial Conduct Authority v Macris

[2017] UKSC 19 · 22 March 2017Limits

The majority interpreted the provision as protecting a prejudiced third party only where the regulatory notice itself identifies that person. Public information may interpret a unique synonym in the notice but cannot supplement its language with additional identifying facts (see paras [11]-[17]). The subsection requires reasons in a warning notice which identify and prejudice another person to be copied to that person. The majority held that identification must arise from the notice, subject only to interpretative use of public information (see paras [6]; [11]-[17]). The word “identifies” requires the notice to name the individual or use an equivalent unique synonym. Identification is not established merely because informed readers can combine the notice with extrinsic facts (see paras [18]-[30]). The subsection assigns to the regulator the question whether the identified matter is prejudicial to the third party. Lord Wilson distinguished that question from whether the notice identifies the applicant (see para [56]). The notice procedure need not be repeated where a corresponding notice concerning the same matter has been given to the third party in that person’s own right (see para [6]). Lord Wilson relied on the subsection’s wording as confirming that it is the notice which must identify the person (see para [50]). The subsection requires a copy notice given to a third party to specify a reasonable period for representations (see para [6]). The subsection provides corresponding protection for a third party identified and prejudiced by a decision notice, enabling recourse to the Upper Tribunal (see para [6]). The majority’s construction of “identifies” applies equally to decision notices: the notice must itself identify the third party, rather than merely enable identification through additional facts (see paras [11]-[17]). The subsection leaves the regulator to assess whether matter identifying a third party in a decision notice is prejudicial to that person (see para [56]). The decision-notice procedure need not be repeated where a corresponding notice concerning the same matter has been given to the third party in that person’s own right (see para [6]). Lord Wilson relied on the subsection’s wording as confirming that the notice itself must identify the person (see para [50]). The provision entitles an affected third party to refer the matter to the Upper Tribunal (see para [6]).

The Financial Conduct Authority v Grout

[2018] EWCA Civ 71 · 31 January 2018Limits

Section 393 is treated as Parliament’s proportionate response to possible reputational damage caused by regulatory notices. The court therefore rejected a separate Article 8 argument based on reputation. (see paras [16], [21]) Section 393(1) requires a copy of a warning notice to be given to a third party where the notice identifies that person and, in the regulator’s opinion, the reasons are prejudicial to that person. The judgment applies the identification requirement to the FCA notice and concludes that Mr Grout was not identified. (see paras [1], [8], [16]-[22]) Section 393(11) is identified as conferring on a person identified and prejudiced by the notice a right to make representations to the Upper Tribunal before a final decision. The judgment records that procedural consequence but does not analyse the subsection further. (see para [3]) Section 393(4) makes equivalent provision for decision notices. The judgment treats the identification question as applying equally to the decision notice and the materially identical final notice. (see para [1]) Section 393(9) is identified as conferring on a person identified and prejudiced by the notice a right to make representations to the Upper Tribunal before a final decision. The judgment records that procedural consequence but does not analyse the subsection further. (see para [3])

The Financial Conduct Authority v Macris

[2015] EWCA Civ 490 · 19 May 2015Interprets

The court interpreted section 393 as requiring a prejudicial matter referred to in the notice to identify a person other than the notice recipient. It supplied the statutory framework for third-party rights and the appeal. (see paras [2], [35]-[40], [64]-[65]) Section 393(1) requires a copy of a warning notice where its reasons relate to a prejudicial matter identifying another person. Identification must be made by a specific reference or key or pointer in the notice, although the person need not be named. (see paras [17]-[18], [35]-[51]) Section 393(11) provides the route to the Tribunal for a person alleging that a copy of a decision notice should have been given. The respondent used that route; entitlement depended on satisfying the identification condition in subsections (1) and (4). (see paras [16], [25], [64]-[66]) Section 393(4) applies the identification requirement to decision notices. The court held that the relevant matter must contain a specific reference or key or pointer to a person other than the notice recipient, with identity assessed objectively using relevant contemporaneous knowledge. (see paras [17]-[18], [35]-[51])

What each judgment says about section 393 is in the case-law panel in the full Act.

Explanatory note

690.Where this section applies (see section 392 above) it confers rights on any person (a “third party”) who is identified in prejudicial terms in the reasons contained in a warning notice or decision notice.    Third parties are given the right to receive a copy of the notice, and to make representations or refer the matter to the Tribunal in the same way as the person who is the subject of the Authority’s proposed action.  However subsections (2) and (6) provide that a third party does not need to be given a copy of a notice which identifies him if a separate warning or decision notice has been given to him in relation to the same matter, and subsection (7) provides a further exception where it is impracticable to contact the third party.

691.Subsection (13) provides that third party notices must describe the rights which third parties also have under section 394 below.  Subsections (5) and (14) provide a third party with rights to receive copies of subsequent notices in relation to the same matter.

All the explanatory notes for the Act

Amendments and notes

30 notes from legislation.gov.uk

Amendments

  1. F3037Words in s. 393(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  2. F3038Words in s. 393(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  3. F3039Words in s. 393(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(3)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  4. F3040Words in s. 393(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  5. F3041Words in s. 393(4)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  6. F3042Words in s. 393(6) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  7. F3043Words in s. 393(7) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  8. F3044Words in s. 393(9)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  9. F3045Words in s. 393(11)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
  10. F3046Words in s. 393(12) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications

  1. C1421Ss. 392-394 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
  2. C1422Ss. 392-395 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
  3. C1424Ss. 392-395 applied (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 1(s) (with art. 11)
  4. C1427Ss. 392-394 applied (with modifications) (14.1.2025 for specified purposes, 13.7.2026 in so far as not already in force) by The Short Selling Regulations 2025 (S.I. 2025/29), regs. 2(2)(3), 24, 25, 26, Sch. 1 Pts. 1, 2, 3; S.I. 2026/587, reg. 2(b)
  5. C1429S. 393 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 24(3) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
  6. C1430S. 393 applied by Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544), art. 95(10) (as inserted (31.10.2004 for certain purposes and 14.1.2005 otherwise) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2003 (S.I. 2003/1476), arts. 1(3), 13)
  7. C1431S. 393 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 24(3) (with reg. 1(2))
  8. C1432S. 393 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
  9. C1433S. 393 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
  10. C1434S. 393 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
  11. C1435S. 393 applied by S.I. 2018/1149, reg. 62(6) (as inserted (1.3.2019) by The Financial Services Contracts (Transitional and Saving Provision) (EU Exit) Regulations 2019 (S.I. 2019/405), regs. 1(2), 3)
  12. C1436S. 393 applied (31.12.2020) by The Electronic Commerce and Solvency 2 (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1361), regs. 1(2), 22(6) (as amended by S.I. 2019/1390, regs. 1(2), 6); 2020 c. 1, Sch. 5 para. 1(1)
  13. C1437S. 393 applied (31.5.2021) by The Civil Liability Act 2018 (Financial Conduct Authority) (Whiplash) Regulations 2021 (S.I. 2021/594), regs. 1, 2(8)(g)
  14. C1438Ss. 393, 394 applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49B(9) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))
  15. C1439Ss. 392-394 applied (with modifications) (31.12.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 11 para. 140; S.I. 2023/1382, reg. 8(b)
  16. C1440S. 393 applied (temp.) (16.12.2025 for specified purposes and 29.6.2028 otherwise) by The Financial Services and Markets Act 2000 (Regulated Activities) (ESG Ratings) Order 2025 (S.I. 2025/1349), arts. 2, 16(5), 19(6) (with art. 20)
  17. C1441S. 393 applied (25.2.2026 for specified purposes) by The Financial Services and Markets Act 2000 (Cryptoassets) Regulations 2026 (S.I. 2026/102), regs. 1(2)(3), 63(6) (with regs. 53-56)
  18. C1442S. 393(1) extended (1.12.2001) by S.I. 2001/3592, arts. 1(2), 36(4) (with art. 23(2))
  19. C1443S. 393(4) applied by S.I. 2018/1201, Sch. 3 para. 12HA(5) (as substituted (6.9.2019) by The Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/1212), regs. 1(2), 7(8))
  20. C1444S. 393(4) applied by S.I. 2018/1201, Sch. 3 para. 32A(5) (as substituted (6.9.2019) by The Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/1212), regs. 1(2), 7(15))